Judgment:
Charanjit Talwar, J.
(1) By this petition seeking issuance of a writ of Habeas Corpus, the petitioner, P C. Agarwal. challenges the detention order passed on 30th December, 1985 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act). He is further seeking quashing of a declaration under Section 9 of the Act made on 3rd February, 1986 The said order and the declaration were passed by Shri M.L Wadhawan, Additional Secretary to the Government of India (Respondent No. I herein) who is specially empowered under the provisions of the Act on behalf of the Central Government to pass the detention order and also to make the said declaration.
(2) The order of detention was passed with a view to preventing the detenu from smuggling goods and abelting the smuggling of goods. A copy of that order is Annexure 'A' to the Writ petition.
(3) In the writ petition the virus of Section 9 of the Act ha(r) been challenged on the ground that it is vocative of article 14, 19 and 22 of the Constitution. It is further urged in the petition that the scheme of the Act does not envisage the same officer to be specially empowered for the purpose of Section 3 as well as Section 9 and as inch the impugned detention order as well a( the declaration are bad in law. The question regarding the validity of Section 9 was not urged before me as I was informed that this very question has been referred to the Constitution Bench of the Supreme Court and is pending adjudication. The other point noticed above was also not pressed as I was informed that a Division Bench of this court was considering it in a number of other Habeas Corpus writ petitions.
(4) Mr. Ram Jethmalani, learned counsel for the petitioner however, urged various pleas challenging mainly the declaration passed under Section 9 of the Act. His first argument it that the declaration was made by the authority concerned in a mechanical manner and without application of mind. The submission ii that it was the duty of Shri M.L. Wadhawan before making the declaration to have considered the representation dated 15th January, 1986 filed by the detenu wherein the detention order was sought to be set aside. To appreciate this contention I may notice a few facts which are admitted. The representation dated 15th January, 1986, a copy of which is Annexure 'F' to the writ petition was addressed by the detenu to Shri M L. Wadhawan. the officer specially empowered under the Act to pass the detention order (Respondent No I herein). It was received in the Ministry of Finance, Department of Revenue Intelligence (for short DRI) on 21st January, 1986 but was seen by respondent No. I only on 27th January, 1986. According to the respondents, this officer bad gone abroad on tour from 12th January, 1986 to 24th January, 1986, and as 25th and 26th January, 1986 were holidays the representation could only be placed before him on 27th January, 1986. On. that very day he directed his Under Secretary and the Technical Officer for their comments and endorsed the representation to those subordinate officials. It is the further case of respondents that as personal allegations had been made in the representation against some officers of the Dri posted at Bangalore. the comments were sought from the Banglore branch of the Dri by the department. Those comments were received on 7th February, 1986. However, the comments of the Delhi office of the department were received in the Ministry on 30th January, 1986 It is urged that the authority making the declaration under Section 9 was not bound to consider the said representation of the detenu before making the declaration and that at any rate it was not possible to consider that representation in the absence of the comments from the Bangalore branch prior to issuing the declaration on 3rd February, 1986 which happened to be the last date by which it had to be made.
(5) I may note here that the factual details which I have noticed above have been averred in paragraph 'H' and 'Q' of the counter affidavit filed by respondent No. I in answer to the rule nisi. Admittedly before issuing the declaration on 3rd February, 19x6, comments from the Delhi office of the Dri had been received. There is no Explanationn in the counter affidavit as to why those comments were not c by the authority concerned till 3rd February, 1986. I may note another fact : the matter was referred to the Advisory Board on that very day i.e. within five weeks from the date of detention but because of the said declaration it was not incumbent on the Advisory Board to submit its report within eleven weeks from the date of detention and that period having been extended as per Sub-section 2 of Section 9, the Advisory Board has yet to submit the report.
(6) The first question, thereforee, which arises for comiderationis was it incumbent on the authority concerned to comider the representation of the detenu challenging his detention before issuing the declaration under Section 9 As noticed above the respondents have emphatically stated that 'the declaring authority ig not bound' to do so. Mr. Jethmalani in support of his contention that one of the safeguards provided to the detenu against continued detention is that the specified authority is to apply its mind before making it relies on Satar Habib Hamdani v. K S. Dilip Singhji and others, : 1986CriLJ378 . It is his submission that the safeguard of application of mind to the facts of the case necessarily means application of mind of the authority not only to the detention order and the grounds but also on the representation submitted by the detenu challenging the detention order.
(7) It is well settled now that before making a declaration under Section 9(1) of the Act, the appropriate authority, be it the Central Government or the specially empowered officer, is to apply its mind at the stage of issuing the declaration. It is not open to the specified authority to make the declaration on a ground other than the one on which detention order was passed. That would amount to issuance of the declaration on a non-existent ground. In Smt. Rekhaben Virendra Kapadla v. State of Gujrat and others, : 1979CriLJ212 , the State Govt had passed the detention order with a view to preventing the detenu from engaging in transporting smuggled goods. The declaration under Section 9 of the Act by the authority concerned was, however, on its satisfaction that the detenu 'engages' and was likely to engage in transporting smuggled goods in the areas which were highly vulnerable to smuggling. Their Lordships while upholding the order of the State Government in passing the detention order which was based on the past activities of the detenu held that the declaration under. Section 9 of the Act was bad as there was no material before the authority concerned to come for its satisfaction that the detenu was engaging himself in unlawful activities. It is useful to quote a part of paragraph 8 of the reported judgment where the question regarding the satisfaction of the declaring authority has been dealt with : -,:
'The question is whether the past activities of the detenu are such that the detaining authority can reasonably come to the conclusion that the detenu is likely to continue in his lawful activities. If the detaining authority in this case bad come to the conclusion taking into account the past activities of the dbtenu that he is likely to continue to indulge in such activities in future thee would be no justification for this Court to interfere. It is quite likely that persons who are deeply involved in such activities as smuggling can cause a reasonable apprehension in the minds of the detaining authority that they are likely to continue in their un-lawful activities. In this cale, the 4th respondent who passed an order under Section 9(1) has not stated that he is satisfied that the detenu is likely to engage in transporting all smuggled goods. Whether has stated is that the dete nu 'engages and is likely to engage in transporting smuggled goods'. There was no material before the 4th respondent for coming to the conclusion that the detenu 'engages' in transporting smuggled goods. To this extent we have to accept the contention of the learned counsel for the appellant that there is no material for coming to the con- clusion that the detenu was 'engaging' himself in the unlawful activities.
(8) It is thus clear that it is incumbent on the specified authority to apply its mind afresh to conclude that not only is the detenu engaged in unlawful activities as provided under the Act which led to his detention but also that those activities are being carried out or likely to be carried out in vulnerable areas. The representation of the detenu challenging the detention order if received within time by the specified authority (in this case Sh. Wadhawan is the empowered authority for the purpose of pissing the detention order and also for isluing the declaration) cannot be ignored from consideration. In my view it is incumbent on the authority concerned lo consider that representation also. However, I agree with Mr. Anand it in a number of cases, it will not be possible for the authority to do so for various reasons. The delay in those cases if satisfactorily explained would not vitiate the declaration but in the present case on the respondents own showing respondent No. I had not asked for comments of the office of the Dri but only from his Under Secretary and other subordinate officials who in normal course were to communicate with the DRI. I may note that by not asking the officers concerned directly for their comments by itself cannot be considered a reason for setting aside the declaration. In the present case, however, admittedly by or on 30th January. 1986 the comments of the Dri of Delhi i.e. main office which office in normal course ought to have material record regarding the activities of the detenu as the detention had been passed by the Central Government on the proposal of that department, had been submitted to respondent No. 1. There is no Explanationn much less satisfactory Explanationn for not considering the representation while keeping those comments in view till 3rd February, 1986. Mr. Anand has taken me to the relevant portions of the representation where certain personal allegations had been made against a particular officer of the Dri who was at the relevant time posted at Bangalore and who it was claimed by the petitioner was his clasimate in college. The comments of the Bangalore branch, it appears were received on 7th February, 1996 and according to the respondents it was after receipt of those comments that the representation was considered and eventually rejected. As I have noticed above, the question is firstly whether the representation is to be considered by the authority while issuing the declaration. I may note that learned counsel for the parties concede that there is no direct authority on this point.
(9) In the present case the detaining authority as well as the authority empowered to make a declaration is the same There is no doubt that it is incumbent on the detaining authority to consider the representation with the utmost expedition. The delay in not conaidering it has to be satisfactorily explained. In Harith Pahwa v State of U.P. & Ors, : 1981CriLJ750 , the Supreme Court while dealing with the question of delay in considering the representation has observed:
'We may make it clear, as we have done on numerous earlier occasions, that this court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to it not the type of action which the State is expected to take in a matter of such vital import. We would emphasise that it is the duty of the State to proceed to determine representation of the character above mentioned with the utmost expedition which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. This not having been done in the present cage we have no option but to declare the detention unconititutional. We order accordingly, allow the appeal and direct appellant be set at liberty forthwith.'
(10) In the present case after going through the record which was produced by Mr. Anand for my perusal it does appear to me that it was possible for Shri Wadhawan to have considered the representation of the detenu on almost all aspects excepting the one referred to above after receiving the comments from the Fri office at Delhi on 30th January, 1986. However, the argument is that he was to consider that representation only as an officer empowered to pass the detention order Was it incumbent on him to consider that very representation in his capacity as specified officer authorised to make a declaration under Section 9 According to the respondent Sh. Wadhawan as specified officer was not bound to do so. I am assuming for the lake of the arguments that the provisions of the Act permit the Government to authorise him to act in those two capacities. In the facts of this case, in my view it is not necessary to decide that the specified officer who has to make declaration must await in all cases for the decision on the representation made by the detenu. Yet where the specified officer is the same authority who is empowered to pass the detention order as well and it is possible for that authority to decide the representation before making the declaration he must decide the same as otherwise the safeguard provided to the detenu at the stage of making the declaration cannot be said to have been complied with.
(11) I thus hold that before making the declaration, Shri Wadhawan ought to have applied his mind on the said representation. The delay in not doing so from 30th January 1986 to February 3, 1986 has not at all been explained. It is, thereforee, further to be held that the continued detention of the petitioner by virtue of declaration under Section 9(1) of the Act (Annexure 'B') is bad. I hold accordingly. Consequently the detention order is also liable to be quashed as the Advisory Board has not submitted its report within Ii weeks from the detention. In this view of the matter, it ii not necessary to notice the other submissions of Mr. Jethmalani challenging the detention. While allowing the writ petition. I make the Rule absolute and direct that the petitioner P.C. Aggarwal be set at liberty forthwith unless required. to be detained under a valid order of any authority or a court.